[2018] KEHC 9967 (KLR)
The court found that the applicant is the undisputed owner of the motor vehicle Reg. No. KBY 299Z Toyota NZE. The police failed to provide any evidence linking the applicant to the alleged conspiracy to sell the vehicle or to justify its continued detention. The court held that further detention of the vehicle would...
Source-derived case information.
- Citation
- [2018] KEHC 9967 (KLR)
- Parties
- Applicant: Annold Nyasinga Ogwenyi; Respondent: Director of Criminal Investigations; Respondent: The Officer Commanding Langata Police Station
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 660 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Release of Motor Vehicle
- Outcome
- application allowed
- Legal Topics
- Detention of Property, Release of Exhibits, Ownership Disputes, Police Investigations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annold Nyasinga Ogwenyi
Applicant
Director of Criminal Investigations
Respondent
The Officer Commanding Langata Police Station
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Release of Motor Vehicle
Legal Issues
- 1 Whether the applicant is entitled to the release of motor vehicle Reg. No. KBY 299Z Toyota NZE pending police investigations.
- 2 Whether continued detention of the vehicle by the police is justified in the absence of evidence linking the applicant to any offence.
- 3 Whether the interests of justice require the applicant to be restored to possession of the vehicle.
Ratio Decidendi
The court found that the applicant is the undisputed owner of the motor vehicle Reg. No. KBY 299Z Toyota NZE. The police failed to provide any evidence linking the applicant to the alleged conspiracy to sell the vehicle or to justify its continued detention. The court held that further detention of the vehicle would be punitive and unnecessary, especially as the vehicle was at risk of wastage. The interests of justice required that the applicant be restored to possession, subject to safeguards to preserve evidence for any intended prosecution. The court therefore ordered the immediate release of the vehicle to the applicant, with conditions to ensure the preservation of evidence and...
Court Disposition
application allowed
Orders
- The DCIO Langata Police Station shall within 36 hours release motor vehicle Reg. No. KBY 299Z Toyota NZE to the applicant.
- The applicant shall provide a copy of the Log Book and current Search Certificate to the investigating officer IP Nathaniel Ambasa.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CR. APPLICATION NO. 660 OF 2018
ANNOLD NYASINGA OGWENYI.......................................APPLICANT
VERSUS
DIRECTOR OF CRIMINAL INVESTIGATIONS.........RESPONDENT
THE OFFICER COMMANDING
LANGATA POLICE STATION........................................RESPONDENT
RULING
1. I have heard the respective rival submissions. The application before me by Notice of Motion dated 2/11/2018 for an order of release of motor vehicle Reg. No. KBY 299Z Toyota NZE. There is no dispute that the vehicle is currently owned by the Applicant. The said motor vehicle was hired by Julius Githinji Macharia on 5/10/2018. The said hirer then went on a spree to sell the vehicle to a third party.
2. In my honest opinion, the third party that bought the vehicle did not exercise due diligence before undertaking the purchase. She should have conducted a search with the Registrar of Motor Vehicles which search would have revealed that the owner of the vehicle was not the seller.
3. Against this background, it can be injurious to punish the bona fide owner merely because of a mistake of an unscrupulous person. I sympathize with the buyer, but justice demands that the Applicant be accorded his rightful possession.
4. Although the investigating officer, Inspector Nathaniel Ambasa in his replying Affidavit alluded that investigations are ongoing with a possibility of an outcome that the Applicant may have colluded with Julius Githinji Macharia to sell the vehicle, those assertions are not supported by any evidence. Furthermore, the vehicle was impounded way back on 22/10/2018 within which period the police ought to have arrived at candid conclusions. Infact, it is not even disclosed what evidence the police have that links the Applicant to any alleged conspiracy. Even the period the investigations will take is not given. This implies that any further detention is merely intended to punish the Applicant. I see no need to further hold the vehicle as it is fast wasting. Evidence from any intended prosecution can be preserved through the orders I shall make.
5. I accordingly order as follows:
a) That the DCIO Langata Police Station shall within 36 hours release motor vehicle Reg. No. KBY 299Z Toyota NZE to the Applicant.
b) The Applicant shall give a copy of the Log Book and current Search Certificate to the investigating officer IP Nathaniel Ambasa.
c) The investigating officer shall, within 36 hours cause photographs of the said motor vehicle KBY 299Z taken by a scene of crime officer which he shall preserve.
d) The Applicant shall not dispose of the motor vehicle KBY 299Z without the express permission of the investigating officer.
e) No orders of costs.
Dated and delivered at Nairobi This 13th Day of December, 2018.
G.W.NGENYE-MACHARIA
JUDGE
In the presence of;
1. Kimani for the Applicant
2. M/s Nyauncho for the Respondents.